0120081087
09-18-2009
Sharon Davis, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Sharon Davis,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120081087
Agency No. HHS-CMS-0117-2007
DECISION
On December 24, 2007, complainant filed an appeal from the agency's
November 14, 2007 final decision concerning her equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final decision.
ISSUE PRESENTED
Whether the agency properly found that complainant was not subjected
to unlawful discrimination on the bases of sex, race, color, religion,
and reprisal.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Freedom of Information Specialist, GS-12, in the agency's Freedom
of Information Group (FIG) for the Centers for Medicare and Medicaid
Services in Baltimore, Maryland. The record reveals that complainant
has been a Freedom of Information Specialist since approximately 1993.
Complainant's position mainly involves processing expedited Freedom of
Information Act (FOIA) requests.
On April 27, 2007, complainant filed an EEO complaint alleging that she
was discriminated against on the bases of race (African-American), sex
(female), religion (Baptist), color (dark complexion), and in reprisal
for prior protected EEO activity when:
1. In February 2005, complainant became aware that she was not selected
for a GS-301-13 position advertised under Vacancy Announcement Number
HHS-OSORA-2005-0013;
2. In December 2006, she became aware that she was not selected for
a GS-301-13 position advertised under Vacancy Announcement Number
MP-06-250;
3. On March 22, 2006, she was charged absent without leave (AWOL) and
received a written reprimand from the Director, FIG, for her tardiness;
4. On December 12, 2006, the Vacancy Number MP-06-287, Freedom of
Information Specialist, GS-301-13, was cancelled, and several weeks
later, complainant learned that another employee was reassigned to that
position;
5. On January 24, 2007, complainant learned that coworkers received awards
for fiscal year 2006, which she did not receive for work performed in
the FIG; and,
6. On January 26, 2007, complainant learned that Vacancy Announcement
Number HHS-CM-SOR-2007-0004, Freedom of Information Specialist, GS-301-13
was posted for Career Transition Assistance Program (CTAP)/Interagency
Career Transition Assistance Program (ICTAP)1 employees only; therefore,
she could not be considered for the position.
In a letter dated May 16, 2007, the agency dismissed claims 1 - 3 on
the basis that they were initiated by untimely EEO counselor contact.2
The agency accepted claims 4 - 6 for investigation.
Regarding claim 4, complainant stated in an investigative affidavit that
she applied for the GS-13 position advertised under Vacancy Announcement
MP-06-287, but someone informed her that the agency cancelled the
announcement. Complainant further stated that her supervisor informed
her that he would fill the position through reassignment instead of
competition but never stated why the agency cancelled the vacancy
announcement.
Complainant stated that her supervisor is the first FIG manager not
to give her an award, although her production remained the same as
it was when she received awards. Complainant further stated that
it appeared that her supervisor rewarded an African-American woman
(C2), who performed upper management duties, with awards because she
is the "house hand and staff are the field hands." Affidavit, p. 4.
Complainant further stated the supervisor gave a white Jewish male (C3)
a large award, although C3 virtually only performs entry level work.
Complainant asserted that her supervisor "looks out for the whites and
certain other African-American employees." Affidavit, p. 3.
Regarding claim 5, complainant stated that her supervisor "has a way of
writing up jobs in order to block African-American folks from qualifying,
such as requiring experience with software he does not or has not
been able to obtain in three and half [sic] years." Affidavit, p. 4.
Complainant stated that she could not apply for Vacancy Announcement
HHS-CM-SOR-2007-0004 because the announcement was only for CTAP and ICTAP
eligible individuals, and complainant is not a displaced federal employee.
Complainant asserted that her supervisor tailored the announcement so
that she and other African-Americans co-workers could not be considered
for promotion.
Regarding claim 4, complainant's supervisor stated that Vacancy
Announcement MP-06-287 was cancelled because the certificate for the
position was set to expire on November 14, 2006, around the same time he
was appointed Acting Deputy Director of the Office of Strategic Operations
and Regulatory Affairs (OSORA), a new fiscal year was beginning, and he
was involved in several high priority projects. He stated that he asked
for and received an extension of 10 days to fill the position, but the
certificate to hire nonetheless expired because he still did not have
time to interview for the position. The supervisor maintained that he
did not know the names on the certificate because he did not even have
time to review it.
The supervisor further stated that his administrative advisor (Black
female) later informed him that a Christian African-American female
employee (C4) with a law degree was resigning her position in OSORA.
He stated that although the GS-13 Freedom of Information Specialist
position did not require a law degree, the degree helped since the work
involved FOIA analysis. He stated that he met with C4 and offered her
the position, which C4 accepted. He stated that C4 was permanently
reassigned to the position and assigned the task of discovery requests
for cases on which the government is a party to a lawsuit.
Regarding claim 6, the supervisor sated that he discussed the possibility
of laterally transferring someone from another agency because he wanted
to fill Vacancy Announcement HHS-CM-SOR-2007-0004 as quickly as possible.
He stated that he wanted to place someone who already did FOIA work so
that the transition would be easy with minimal training. The supervisor
stated that his administrative assistant advised him that the best way
to achieve his goals would be to advertise for CTAP and ICTAP displaced
federal employees, and if no one applied, he could then seek a lateral
transfer.
The supervisor further stated that the administrative advisor informed him
that no one who applied was eligible under the CTAP and ICTAP process;
therefore, he interviewed for qualified candidates from other agencies.
He stated that he contacted a former co-worker who worked at the
Department of Labor to see if he was interested in working for him.
He stated that Human Resources gave him approval to offer the former
co-worker the position, but she declined the offer. He stated that he
never filled this particular vacancy, but complainant's inability to
apply under CTAP and ICTAP was not a factor in his decision to post the
position pursuant CTAP and ICTAP.
Regarding awards, the supervisor stated that complainant did not receive
an award because she did not perform above the fully successful level.
He stated that he gave C3 an award because he was one of his most
productive employees, processed more cases than many other employees,
collected FOIA statistics from all 10 regions, assisted with the
preparation of the annual FOIA activity report, and received more
favorable comments from the public than anyone else. The supervisor also
stated that he gave C2 an award because she is his Disclosure Policy
Advisor, is very knowledgeable and experienced, is the best Specialist
he has ever worked with, and is considered a technical expert in FIG.
He further stated that he awarded another employee (C5) because she
does very high visibility requests, is very professional, and assists
him with evaluating office technology. The supervisor further stated
that in the past, all employees received awards, but he believed that
awards should only be given for high quality work, high production,
and positive customer feedback.
The administrative advisor stated that Vacancy Announcement MP-06-287 was
cancelled because complainant's supervisor did not have time to fill the
vacancy because his Acting Deputy OSORA Director duties took precedence.
She stated that she asked the supervisor about the vacancy every day,
but the supervisor never had time to fill the vacancy because there were
many issues going on during that time period. The advisor also stated
that in late February 2007, C4 resigned from OSORA as a GS-13 Health
Insurance Specialist. She stated that the supervisor spoke with C4
about the position, and C4 agreed to rescind her resignation and work
in the FOIA office. The advisor stated that C4 was reassigned to the
FOIA office on March 3, 2007, which was a lateral reassignment within
the OSORA office. Regarding Vacancy Announcement HHS-CM-SOR-2007-004,
she further stated that Human Resources officials advised the supervisor
to post the position under CTAP and ICTAP eligibility rules so that
the position could be filled quickly. The advisor stated that although
they posted the position under CTAP/ICTAP, none of the applicants were
eligible under that process.
At the conclusion of the investigation of the accepted claims, complainant
was provided with a copy of the report of investigation and notice of
her right to request a hearing before an EEOC Administrative Judge (AJ).
In accordance with complainant's request, the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that
complainant failed to prove that she was subjected to discrimination or
reprisal as alleged. Complainant did not submit a statement on appeal,
and the agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC Management
Directive 110, Chapter 9, � VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Assuming arguendo that complainant established a prima facie case of
discrimination and reprisal, we nonetheless find that the agency provided
legitimate, non-discriminatory reasons for its actions, as detailed above.
Complainant contends that her supervisor's African-American administrative
advisor and her African-American co-worker C2 are "light-skinned
with permed hair," and the administrative advisor is assisting the
supervisor in denying promotions to qualified African-American women.
Exhibit F6, p. 2. She further maintains that the supervisor's assistant
has "sold out many African-Americans as she could to get where she is
in her career." Id. However, we find that complainant's arguments are
tinged with inflammatory racial stereotypes and assumptions. Complainant
further contends that the supervisor cancelled the vacancy announcement
because he did not want to hire highly qualified African-American women,
but this argument is greatly undermined by the fact that the supervisor
ultimately selected an African-American woman for the GS-13 Freedom of
Information Specialist position. Complainant further maintains that C3
received more positive feedback from customers because the nature of his
work inherently results in more satisfied customers than complainant's
work. However, complainant failed to show that she was entitled to an
award because her performance was beyond the fully successful level.
We note that complainant's arguments are largely conclusory and
speculative assertions. Thus, we find that complainant failed to
prove that the agency's non-discriminatory explanations are pretext for
unlawful discrimination. Consequently, we affirm the agency's finding
of no discrimination.
CONCLUSION
After a review of the record in its entirety, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
decision because the preponderance of the evidence of record does not
establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____9/18/09______________
Date
1 CTAP and ICTAP are programs wherein employees who have been displaced,
received a Reduction in Force (RIF) separation notice, or a Certification
of Expected Separation (CES) are given special priority for selections.
See 5 CFR � 330.605(a), 704; see also Exhibit F12a, p. 6.
2 Because complainant does not challenge the agency's dismissal of
claims 1 - 3 on appeal, we decline to review the agency's dismissal of
these matters.
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0120081087
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120081087